by: Ivana Isailović*
ABSTRACT
The US Supreme Court’s decision in Dobbs—alongside transnational campaigns aimed at chipping away abortion access across EU Member States—has triggered concerns by EU institutions and governments on access to abortion in the Union. This paper maps out the ways in which the EU regulates abortion through economic and human rights frameworks and evaluates their effects on gender equality. I argue that current EU legal frameworks contribute to producing a system of stratified reproductive freedom which entrenches intersectional gender-based inequalities. On the one hand, EU economic law protects the reproductive freedom of women and pregnant people who have the resources to travel within the EU to procure an abortion abroad or abortion pills from abroad. On the other hand, individuals who encounter obstacles to access abortions within many Member States have no EU legal recourse, since the Union’s human rights framework protects Member States’ laws on abortion and shields them from any EU supervision. This stratified system of reproductive freedom accentuates intersectional forms of inequalities, since those who are likely to face obstacles to accessing abortion domestically are most likely to belong to categories already experiencing marginalization, such as women from poor, racialized and immigrant backgrounds. I critically analyze EU legal frameworks while also offering an alternative pathway which is aligned with the EU’s constitutional framework and attempts to ensure a thicker understanding of reproductive justice, based on principles of affordability, accessibility and universality of abortion access in line with international human rights standards.
* PhD, Assistant Professor of EU Law at the University of Amsterdam, Faculty of Law.
Published in CJEL Vol. 30 issue 1.
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Also published in Vol. 30 issue 1:
A Right to Encryption in the European Union’s Charter of Fundamental Rights, by Peter Alexander Earls Davis
EU Lawlessness Law, by Sarah Ganty & Dimitry V. Kochenov
The Prospects and Perils Of US-EU Comparative Constitutional Law: An Interview with Koen Lenaerts, President of the Court of Justice of the European Union, by Justin Lindeboom
